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Practice Tips: Having Trouble Locating an Ethics Rule? We Can Help.

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OCTOBER 2009
NEVADA LAWYER
PRACTICE TIPS FROM bAR COunSEL
HAVING TROUBLE LOCATING AN ETHICS RULE? WE CAN HELP.
BY GlENN MACHADO, ASSISTANT BAR COUNSEl, STATE BAR OF NEVADA
Are you looking for an ethics-related rule you know exists but just can’t seem find? Though most ethical rules are contained in the Rules of Professional Conduct (RPC), there are a few that can be found elsewhere and sometimes even the applicable RPC can be difficult to locate. Here are a few of the more frequent ethics calls we receive regarding ethics rules in hard-to-find places. You’ve received discovery from opposing counsel and among the documents were e-mails between the opposing party and his attorney. You believe there is a rule on point, but can’t locate it. There is indeed a rule, but its heading is not necessarily the most intuitive one. It’s RPC 4.4(b) (Respect for Rights of Third Persons), which states that “[a] lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” A rule regarding third parties may not be the first place you consider looking when searching for guidance regarding inadvertent disclosures, but it’s where you’ll find it, nevertheless. We also receive calls from attorneys frustrated that opposing counsel is missing discovery deadlines or failing to comply with a court order. They are sure the conduct violates the Rules of Professional Conduct, but the exact rule is nowhere to be found. The applicable provision is contained in subsection (c) of RPC 3.4 (Fairness to Opposing Party and Counsel). The rule states that a lawyer shall not “[k]nowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” Blowing off court orders and litigation deadlines is definitely unfair to the opposing party but, unless you know the exact location of the rule, RPC 3.4 is probably not the first rule you’d read.
Sometimes the answer isn’t contained within the Rules of Professional Conduct. For example, say opposing counsel has either passed away or has been suspended or disbarred, but is still listed as the attorney-of-record for the opposing party. We’ve received calls asking whether contacting the opposing party directly in such a circumstance implicates RPC 4.2 (Communications With Persons Represented By Counsel). Or, if they wrote to the suspended/disbarred attorney regarding the matter, would they be assisting in the unauthorized practice of law in violation of RPC 5.5 (Unauthorized Practice of Law)? There is a rule on point, namely Supreme Court Rule (SCR) 47 (Death or removal of attorney; appointment of another attorney or appearance in person), which states that “[w]hen an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action for whom he was acting as attorney shall, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney or to appear in person.” In other words, you have to give the opposing party notice to either get a new attorney or to officially appear in proper person. But you wouldn’t know the answer just by reading the RPCs. Conversely, say a client passes away while litigation remains pending: is there a rule on point? The answer is yes, and although litigators may be familiar with this one, it’s not found in the RPCs and, despite the existence of SCR 47, it’s not contained in the SCRs, either. For this answer, you’ll have to look to Nevada Revised Statute (NRS) 7.075 (Duties of attorney upon death of client being represented in pending action; sanctions). NRS 7.075 states, in part, that “[a]n attorney at law who represents any person who is a party to an action pending before any court shall, within 90 days after the death of that person, file a notice of death and a motion for substitution of a party with the court and cause a copy of that notice and motion to be served upon every other party to the action.”
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Finally, we sometimes get calls asking “where is SCR 165?” – and not necessarily from attorneys who last looked at the professional conduct rules when the Boston Red Sox were still cursed. SCR 78.5 (Maintenance of trust funds in approved financial institutions; overdraft notification) requires that “[a]ctive members of the State Bar of Nevada shall deposit all funds held in trust in this jurisdiction in accordance with SCR 165 in accounts clearly identified as ‘trust’ or ‘escrow’ accounts....” However, if you go looking, you’ll see that SCR 165 is nowhere to be found. The reason is simple: it no longer exists. RPC 1.15 (Safekeeping Property) replaced SCR 165 in May 2006 when the professional conduct rules were renumbered to more closely follow their ABA Model Rule counterparts. However, SCR 78.5 was last revised in 1991, and therefore references the safekeeping property rule that was in effect at the time, which was SCR 165. These examples reflect the most frequent calls regarding hard-tofind ethics-related rules received by our office, but they are certainly not the only ones. So, if you have trouble locating a rule, or encounter a situation which you believe should be covered by a rule you just can’t seem to find, give us a call: we might just have an answer for you.
Glenn Machado is Assistant Bar Counsel for the State Bar of Nevada. A native of New York, where he also is licensed to practice law, he was admitted to the Nevada bar in 2001. Before joining the State Bar of Nevada in 2004, he practiced commercial litigation and transactional law.
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